| In February the Home Secretary published a discussion paper inviting debate on how the Government should strike the balance between security and liberty in the context of the present threat from international terrorism, and responding to the Report of a Committee of Privy Counsellors under the chairmanship of Lord Newton of Braintree on the operation of the Anti-terrorism, Crime and Security Act 2001.
The Joint Committee on Human Rights decided to hold its own inquiry into the human rights issues raised by the Home Office discussion paper. The Committee considers that long term derogations from human rights obligations have a corrosive effect on the culture of respect for human rights. If the threat from international terrorism is to continue for the foreseeable future, the Committee considers that an alternative way must be found to deal with that threat without derogating indefinitely from important human rights obligations.
The public and parliamentary debate about responding to terrorism should take place within a human rights framework. Human rights law both requires the State to act to combat terrorism and at the same time imposes limits on the actions which it can legitimately take. It provides the framework within which the balance between the right to security and the right to liberty must be struck.
In this report the Committee therefore invites the Government to consider ways in which it could increase the independent democratic scrutiny of its claims about the level of the threat from international terrorism so as to enable Parliament to reach a better-informed assessment of whether the measures are strictly required by the exigencies of the situation.
The Committee expresses a number of concerns about the way in which Part 4 the Anti-terrorism, Crime and Security Act 2001 is operating in practice, in particular:
- the risk of the UK being in breach of its obligations under the Convention Against Torture if the Special Immigration Appeals Commission or any other court were to admit evidence which has been obtained by torture;
- the adequacy of the safeguards against injustice in the SIAC process, in light of the fact that one individual was detained without charge for fifteen months before the error in authorising his detention was established;
- the fact that special advocates are appointed by the Attorney General, who has personally represented the Government before the SIAC, and the rigidity of the rule prohibiting any contact between the detainee and the special advocate;
- the discrimination inherent in a measure which targets only non-nationals, and the disproportionate impact of the use of Terrorism Act powers on the Muslim community.
The Committee agrees with the conclusion of the Newton Committee's Report that Part 4 of the Anti-terrorism, Crime and Security Act 2001should be replaced as a matter of urgency, and has considered a range of possible alternatives to Part 4, including whether there is scope for bringing prosecutions for existing criminal offences. It concludes that:
- the absolute ban on the use of intercept evidence is disproportionate to the legitimate aim of protecting intelligence sources and methods and should be relaxed;
- an examining magistrate model would be unlikely to assist with the problem of dealing with sensitive intelligence material within the criminal process, but consideration should be given to greater use of a security-cleared prosecutor with a view to facilitating greater use of material derived from intelligence sources;
- further consideration should be given to other process changes to facilitate prosecution, even if these require some modification of the ordinary criminal process in order to deal with the problem of sensitive intelligence material.
The Committee also considered other possible alternatives to Part 4 of the Anti-terrorism, Crime and Security Act 2001. It concludes that:
- it is not persuaded that a new criminal offence of acts preparatory to terrorism would facilitate prosecutions which are not currently possible;
- treating terrorism as an aggravating factor in sentencing may be an appropriate measure, subject to safeguards including retention of 'beyond reasonable doubt' as the appropriate standard of proof;
- the use of more intense overt surveillance, subject to safeguards, is preferable to indefinite detention because it is less restrictive of liberty;
- the use of civil restriction orders should be considered, accompanied by appropriate procedural safeguards including access to an independent judicial determination and a test of strict necessity.
The Committee also considers the responses of other countries to the threat from international terrorism. It finds that no other country in the world has derogated from its international human rights obligations, and no other country apart from the USA has resorted to indefinite administrative detention. The Committee concludes that the experience of other countries suggests that it must be possible to deal with the threat from terrorism by means of criminal prosecution.
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